Mesothelioma Verdict|Thrown Out for Retrial

(CN) – The mishandling of expert testimony requires a new trial in a $9 million mesothelioma case, the full 9th Circuit ruled Wednesday. Henry Barabin, who worked at the Crown-Zellerbach paper mill in Washington from 1968 to 2001 and developed the rare form of cancer in 2006, claimed that he had regularly worked around dryer felts containing asbestos, which causes mesothelioma, and even took the felts home to use in his garden. He and his wife sued plant suppliers AstenJohnson Inc. and Scapa Dryer Fabrics Inc. The companies moved to exclude two of the Barabins’ experts from testifying at the trial, which promised to be “a battle of experts.” They claimed that industrial health expert Kenneth Cohen lacked the proper credentials, and that Dr. James Millette’s “tests were unreliable, because his methodology was not generally accepted in the scientific community,” the appeals court summarized. U.S. District Judge Robert Lasnik initially excluded Cohen from testifying on behalf of the Barabins, citing his “dubious credentials and his lack of expertise with regard to dryer felts and paper mills,” but he later changed his mind and let Cohen testify. Lasnik also allowed Millette to testify, and allowed the jury to hear controversial testimony that “every asbestos fiber is causative.” A jury subsequently ruled for Barabin and awarded $9.3 million in damages. AstenJohnson and Scapa moved for a new trial, arguing that the District Court should have waited to reverse itself after further assessing Cohen’s credentials in a Daubert hearing, named for the 1993 case Daubert v. Merrell Dow Pharm. Judge Lasnik denied the move, and the companies took the issue to the 9th Circuit. An initial ruling by a three-judge appellate panel in 2012 granted the defendants a new trial based on the lower court’s failure to hold a Daubert hearing on the expert issue. The Barabins successfully petitioned for a rehearing before an en banc panel, but those judges reached the same conclusion in a divided ruling published Wednesday. The mostly unanimous 11-judge panel found that the District Court had failed in its role as “gatekeeper” of expert testimony. “The District Court’s only explanation for reversing its decision, without a Daubert hearing or findings, was, ‘I think the plaintiffs did a much better job of presenting to me the full factual basis behind Mr. Cohen testifying and his testimony in other cases,'” Judge N.R. Smith wrote for the majority. “Absent from the explanation is any indication that the district court assessed, or made findings regarding, the scientific validity or methodology of Mr. Cohen’s proposed testimony. Therefore, the district court failed to assume its role as gatekeeper with respect to Mr. Cohen’s testimony.” Moreover, as expert testimony was at the heart of the case, and, indeed, the Barabins likely had no case without it, the lower court’s error did much harm to the defendants, according to the panel. “The District Court failed to make findings of relevancy and reliability before admitting into evidence the expert testimony of Mr. Cohen and Dr. Millette and expert testimony regarding the theory that ‘every asbestos fiber is causative,'” Smith wrote. “The district court’s failure to make these gateway determinations was an abuse of discretion. The error was prejudicial because the erroneously admitted evidence was essential to the Barabins’ case. Due to the district court’s abdication of its role as gatekeeper and the severe prejudice that resulted from the error, the appropriate remedy is a new trial.” In a partial dissent joined by four colleagues, Judge Jacqueline Nguyen argued that the court could simply have vacated the judgment and remand with instructions to the District Court to conduct a Daubert hearing, rather than hold a new trial. “The majority … unnecessarily burdens both the parties and the judicial system by ordering a new trial without having a sufficient basis to determine whether the disputed expert testimony was admissible,” Nguyen wrote. She added: “If, however, the testimony is inadmissible, the district court should ascertain whether the wrongful admission of that expert testimony prejudiced the defendants and, if so, order a new trial. In the former case, the system will not be unreasonably burdened with a retrial. In either case, the parties retain their right to appeal. This solution makes practical and legal sense.”